The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-06-01
SUPREME COURT CASES
Reported for The Clarion By w. II. Harper
htforney-st-Lsw, jackson, Mics
April Tennis 81.
L., y. o. & t. r. COL

Appeal from the Circuit Court of Frank
lin county. Hon. ]. B. Chrisman
Judge.
W. a. Percy, for the appellant.
Sessions 4 Cassidy, for the appellee.
The south-bound passenger and the
north bound freight trains of the Louis
vile, New Orleans and Texas Railroad
Company were accustomed to pass eact
other at a station named Knoxville. Or
January ., 1886, the freight traiI
arrived first, as usual, and Immediately
took the side track, which was On tn
east side of the main track, as was the
depot also. An opening was made a
the depot by uncoupling the freigh
train and separating the two parts, a
had been the usual custom. 1t was the
custom of the depot agent, expressmen
passengers and the public generally, K
use this opening in going to the passen
ger train. Usually the freight trair
would remain at the station uncoupleC
until the passenger train had gone. Or
the day above stated the opening hac
been reduced from the usual size u
about two or three feet in width, by
another opening having been made at q
crossing of a new roadway over the
track. On the day in question several
persons crossed over TO the passenger
train, among them the depot agent. p
G. Thompson, whose store was on the
east side of the track, desiring to see the
agent about shipping some freight, came
up to the opening, looked about, and
seeing that the freight train was not in
motion, proceeded to cross over to the
platform where the passenger train was
standing. Just when he was between
the cars, the boxes came together with
great force, a brakeman cried out, "lOok
out" and Thompson was caught between
the bumpers. His pelvic bone was
crushed, his thigh was broken in two
places, his leg was broken and he was
confined to his bed for ten weeks, suffer
ing much of the time with intense pain.
His leg, on recovery, was found to be
two inches shorter, and he was otherwise
seriously and permanently injured. The
train came together while the passenger
train was still at the station, and with
out any previous signal except the usual
hand signal of the conductor to the
engineer to back the train to re-couple.
Thompson brought this action against
the railroad company for damages, and
the Jury found in his favor and awarded
him $4,000. On the trial the conduc-
tor testified that he warned the public
not to attempt to cross through the
opening Just before the train started to
move back. But this was eontradicted
by several witnesses.
The defendant appealed to this court,
and assigned among others the following
as error:
SO. In refusing when requested by
appellant to correct statements of law
made to the jury by counsel for the APP
pellee and in refusing to contine counsel
in his discussion of the law of the case
to that announced in the instructions of
the court" The bill of exceptions on
this point is as follows: " In his first
address to the jury, Hiram Cassidy,
counsel for plaintiff, stated that the
railroad company was bound and was
under an obligation to the general pub
lie, when the passenger train was at the
depot, to open the freight train so that
any one might pass through whether
from within or on business. Counsel
and asked the court to correct counsel
and require him to refrain from stating
to the jury other propositions of law
than those announced in the instruc-
tons of the court. The court said 1t
would not say whether counsePs state
ment of the law was correct or not, and
would not correct him or interfere with
his statement of the law, but if he mis-
stated facts would correct him."
ARNOLD, J., delivered the opinion of
the Court.
The instructions given and refused.
and the rulings of his Honor, the circuit
Judge, throughout the trial display accu-
rate comprehension and discrimination
as to the principles of law involved in
the case. Without darkening counsel
by words, and without exploring or
attempting to make any contribution to
the learning in regard to contrlbu-
tary negligence, it may be said with
entire confidence, that on the facts pro-
duced in evidence by appellee, many OF
which are not controverted, appellant
is answerable for damages in the cause,
unless railroad company in the prose
cution of it's business, may set trap
for people, and after a man has been
caught in it, and killed or injured,
escape liability by assuming the posi-
ton that he ought to have had more
sense and discretion than to have been
deceived or misled by the continuance.
If there is any authority which supports
such defence, we decline to follow it.
Whether appellant was under obliga
ton to make an opening through its
freight train for the benefit of the
public, at or about the depot, when il
was on the side-track between the depot
building and the main track, it did III
fact make an opening, and had done sc
habitually before, which was, and had
been used, by the public generally
without objection by appellant. The
action of appellant in this respect
amounted to an inducement and invita-
ton of the public to avail of the opening
thus made, for the purpose of passins
across the side track. Under these cir
cumstances, it was the duty of the rail
road company to use reasonable car
and prudence to protect persons from
injury, crossing the track at that point
Murphy VS.. Boston & Albany r. r. Co.
1873 Mass, 121; Sweeny VS.. Old Colon,
Il. r. Co., 10 Allen, 36S; Stewart VS.
Penn. +. Il. Co., IA Am. u Eng. K. X
Cases, 679.
Appellee was bound at his peril t.
act, under the circumstances, as a rea
sonable and prudent man, and if acting
thus, he was injured, he was entitled t.
indemnity, if by ordinary and reasona
BILE care on the part of the railroa'
company the injury might have bee
avoided. Bardwell VS.. NJ. & o. R. Z
Co. SO Miss, 574; V. & NJ. r. r. Co
| VS.. McGowan, 60 ID, 6S2; V. & NJ. +
r. Co., VS.. Alexander, Id, 496. Thi
was the view of law submitted to tn
| Jury, and the facts warranted the cor
clusion which they reached.
1t cannot be said that the damages Q
| fifteen thousand dollars, awarded by th
Jury, are excessive. We apprehend tbs
but few, if any persons, would submit
the injury and suffering sustained b
appellee, for that sum.
/ If the theory of law propounded b
appellee's counsel in his argument to th
Jury. in regard to the obligation of til
railroad company to open the freigf
train so that any enc might pas
through, when the passenger train ws
at the depot, was deemed unsouns
/ appellant should have asked instructio
from the court for the jury on tia
point. There was no such abuse of Il
privilege of counsel in the matter as t
call for correction here. There is I
error in the record, and the judgment
affirmed.
~. w. ROBERTS & Co.,
V.
w. H. SIMS, Trustee.
Appeal from the Circuit Court of Hin
county. T. ]. Wharton, Judge.
E c. S. North for appellants.